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 ©New Straits Times
(Letters Section) (Used by permission)
by Prof Salleh Buang, Alor Star
IN your report "Don't follow blindly, judges told" (NST, June 27), Chief
Justice Tun Abdul Hamid Mohamad says that the move by the Federal Government to
amend Article 121(1) of the Federal Constitution, restoring the power to the
judiciary, which was taken away in 1988, was an "interesting development". I
agree.
He added that "it shows that an amendment made in anger as a
reaction to a decision of the court could last (only) for one generation" and
that just as "water tends to find its own level", the country now is finding its
way back "to the original provision".
While it is not my intention to question what the learned chief justice said
last week, I am still wondering "whose anger" led to the amendment of Article
121(1) two decades ago?
Who was angry enough to want that important provision amended? Was it the prime
minister (as most people seem to believe) or was it the public prosecutor (which
is what I believe)? After you read the chronology of events I summarise below,
you can form your own judgment.
In Public Prosecutor v Datuk Yap Peng (1987) 2 Malayan Law Journal 311,
the accused was charged with criminal breach of trust in the Kuala Lumpur
Sessions Court on Dec 19, 1986. When the case was mentioned on Dec 29, the
deputy public prosecutor tendered a certificate issued by the public prosecutor
under Section 418A of the Criminal Procedure Code (CPC), requiring the case to
be transferred to the High Court.
When the accused was subsequently charged in the High Court
on Jan 6, 1987, his counsel argued that the transfer was unconstitutional and
that Section 418A violated Articles 121(1) and 5(1) of the Federal Constitution.
At the High Court, trial judge Zakaria Yatim held that Section 418A was
unconstitutional because it contravenes Article 121(1). He held that the power
to transfer cases is an exercise of judicial power. Aggrieved by that decision,
the public prosecutor appealed to the Supreme Court.
The Supreme Court held by a majority decision of 3:2, supported by Tan Sri
Eusoffe Abdoolcader, Tan Sri Lee Hun Hoe and Tan Sri Mohamed Azmi with Tan Sri
Hashim Yeop A. Sani and Tun Salleh Abas (lord president) dissenting, that
Section 418A CPC was unconstitutional.
Eusoffe described Section 418A CPC as "both a legislative and executive
intromission into the judicial power of the federation. It is a legislative
incursion to facilitate executive incursion ...".
Mohamed said: "Section 418A clearly confers judicial power on a body which is
not a court and as such, it is an interference of judicial power of the
federation as enshrined in Article 121 of the Constitution."
Lee did not deliver a separate judgment. He merely endorsed Eusoffe's judgment.
Hashim Yeop (who delivered his own dissenting judgment) said: "Section 418A has
been examined by the courts in this country on a number of occasions ...".
He said that the Federal Court in Datuk Haji Harun bin Haji Idris v Public
Prosecutor (1976) 2 MLJ 116 had agreed with his judgment in Public
Prosecutor v Su Liang Yu (1976) 2 MLJ 128 that Section 418A of the CPC "is
procedural and merely a vehicle for the attorney-general (or public prosecutor)
to exercise his powers under Article 145(3) of the Constitution".
Salleh (who also delivered his own dissenting judgment) said: "I cannot see how
this power... could be regarded as an encroachment upon the judicial power of
the court. In my view, it is neither a judicial power nor an encroachment upon
that power."
In summary, two judges of the Supreme Court regarded Section 418A CPC as
unconstitutional (with the third judge merely concurring), while two other
judges (including the lord president himself) said that Section 418A is merely
procedural and cannot be regarded as an encroachment.
Be that as it may, that Supreme Court decision in 1987 has since never been
questioned or overruled by the Federal Court.
The lesson we get from that decision is that Section 418A (the power of the
public prosecutor to transfer a case from the subordinate court to the High
Court) is unconstitutional because it is against Article 121(1) of the
Constitution, which provides that "judicial power of the federation shall be
vested in two High Courts".
Since the Federal Constitution guarantees that "judicial power is vested in the
High Courts", the action of the public prosecutor under Section 418A is,
therefore, constitutionally wrong. It is wrong because, in the Supreme Court's
majority judgment, the act of transferring a case from the subordinate courts to
the High Court is an exercise of judicial power.
It was after this inglorious defeat in court in Datuk Yap Peng's case
that Article 121(1) was amended. The offending words in Clause (1) of Article
121 had to go. Its repeal means the public prosecutor can thereafter freely
transfer any case from the subordinate courts to the High Court without question
or challenge.
It should never be forgotten that the public prosecutor actually wears two hats
under the law. As the attorney-general, he had amended the CPC in 1976 to
facilitate the transfer of cases before the subordinate courts to the High
Court.
Before the 1976 amendment, as public prosecutor, he had to apply (and obtain the
order) of the subordinate court to have a case (which was then pending before
the subordinate court) to be transferred to the High Court.
After the 1976 amendment, he merely had to furnish his DPP with his certificate
and the subordinate court must transfer ("shall transfer") such a certified case
to the High Court.
As stated earlier, such transfers were regarded by Hashim Yeop (in his
dissenting minority judgment) as merely procedural in nature; it was not
encroachment on judicial power.
Salleh also regarded such transfers by the public prosecutor as not an
encroachment on judicial power.
However, since the Supreme Court had struck down Section 418A CPC in Yap's case
as contravening Article 121(1) of the Federal Constitution, the public
prosecutor (wearing the hat of attorney-general) chose to overcome his defeat in
court in the usual manner, in the same way as had been done so many times in the
past, that is via legislative amendment. Article 121(1), the hurdle to such
exercise of public prosecutor's power, had to go.
Having considered the chronology of events as I have indicated above, can we
honestly say that this entire episode has the imprint of any "interference or
influence" by the prime minister of the day?
I don't think so. To my mind, the 1988 amendment was the sole legislative
initiative of the public prosecutor in his dual role as the attorney-general.
He might be in error, but he was acting, as he deemed fit, under Article 145(3)
of the Constitution.
That provision reads as follows: "The attorney-general shall have power,
exercisable at his discretion, to institute, conduct or discontinue any
proceedings for any offence, other than proceedings before the syariah court, a
native court or a court-martial."
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